CANNABIS ACROSS CANADA

Legislation & Regulation By Province.

Legalisation of recreational cannabis in Canada finally takes effect today, Oct. 17, after it was delayed from the original date of July 1 to give provincial governments more time to put their individual plans in place.

For the most part, the provinces have cannabis legislation and frameworks finalised, although some have said things could change after legalization takes place.

There are some similarities in the legislation and regulations regarding recreational cannabis across the provinces and territories. For example, all jurisdictions maintain the federal 30-gram possession limit for non-medical marijuana, except for Quebec, which currently sets the limit at 150 grams. All of them ban consumption in vehicles.

Adults across the country can grow up to four plants at home, except in Manitoba and Quebec, which have banned home cultivation altogether. In most of the jurisdictions, the age of majority for cannabis possession and consumption is 19, save for Alberta and Quebec, where it’s 18, although Quebec’s new CAQ government recently announced plans to raise it to 21.

Cannabis edible products and concentrates will be legal for sale approximately one year after the Cannabis Act has come into force.

Regarding driving restrictions, all jurisdictions maintain a zero-tolerance policy for drivers in graduated licensing programs and for commercial drivers.

In June, the legislation formerly known as Bill C-46, which amends the provisions of the Criminal Code that deal with offences and procedures relating to drug-impaired driving, was passed by Parliament. It has three main elements that address drug-impaired driving:

• It creates new criminal offences of being at or over a prohibited blood drug concentration for certain impairing drugs, including THC and cocaine within two hours of driving (the levels are set by regulation);

• It authorises the police to use approved drug-screening equipment (e.g., oral fluid drug screeners) to detect the presence of some impairing drugs in drivers such as THC and cocaine;

• It strengthens the existing legal framework to enhance the investigation and prosecution of the current offence of driving while impaired by a drug.

According to the legislation, there are three new offences of having prohibited blood drug concentrations within two hours of driving.

There is a straight summary conviction offence and two hybrid offences. One hybrid offence applies to drugs alone and one applies to drugs in combination with alcohol. A summary conviction offence is intended for less serious conduct. A hybrid offence is an offence where the prosecutor can decide to proceed either by way of summary conviction (in less serious cases) or by indictment (in more serious cases).

The new prohibited blood drug concentrations are as follows:

• At or over two nanograms but under five ng of THC per millilitre of blood for the straight summary conviction offence;

• At or over 5 ng of THC per ml of blood for the drug-alone hybrid offence;

• At or over 2.5 ng of THC per ml of blood combined with 50 mg of alcohol per 100 ml of blood for the drugs-with-alcohol hybrid offence.

The penalty for the summary conviction offence is a maximum fine of $1,000.

The penalties for the two hybrid offences are the same as for alcohol-impaired driving. These include mandatory minimum penalties of a $1,000 fine for a first offence, 30 days imprisonment for a second offence and 120 days imprisonment for a third offence.

Police can demand a sample of oral fluid on approved drug-screening equipment at the roadside. A drug screener has now been approved for use as an additional tool for law enforcement.

An approved oral fluid drug screener must be comprised of both an oral fluid collection kit and a reader. It can detect the presence of some drugs in oral fluid, including THC, the main impairing component in cannabis. A positive result on an oral fluid drug screener may provide enough information to move the investigation forward either by making a demand for a drug recognition evaluation or a blood sample.

Before the police can demand an oral fluid sample on a drug screener, they must reasonably suspect there is a drug in the driver’s body. Courts have indicated that a reasonable suspicion is based on objectively discernable facts, such as red eyes, muscle tremors, agitation or speech patterns. Police officers are trained to identify the signs and symptoms of recent drug use.

Following are the different approaches to recreational cannabis legalization by province:

The Alberta Gaming and Liquor Commission will oversee distribution and enforcement while owner-operators will set their own prices and won’t be able to sell items other than cannabis and cannabis accessories. The private sector will sell recreational cannabis, while the province will control online sales through Alberta Cannabis.

Driving restrictions:

• zero tolerance for cannabis or illegal drugs in the blood stream of Graduated Driver Licensing (GDL) drivers, in addition to alcohol;

Drivers under the GDL program found to have any amount of cannabis or illegal drugs in their blood are now subject to the same provincial sanctions that apply to alcohol, including:

• immediate 30-day licence suspension;

• immediate seven-day vehicle seizure;

• must remain in GDL program for two years and have no suspensions in the last year to graduate from the program.

GDL drivers who meet the requirements for criminal-level impaired driving will be subject to any and all provincial sanctions and criminal penalties that apply.

All drivers who are reasonably believed to be criminally impaired, who fail or refuse to provide a fluid sample or are found to be over the legal limits for alcohol, cannabis or cannabis/alcohol combination will be subject to the following sanctions:

• immediate 90-day licence suspension;

• immediate three-day vehicle seizure (seven days for a second and subsequent occurrence);

Permitted where tobacco smoking is allowed but not in vehicles or where children are present (playgrounds, parks, beaches).

Home grow restrictions: No visible plants from public. No growing in daycares/assisted-living homes. Deemed grow ban in existing leases.

Distributor:

BC Liquor Distribution Branch

The Liquor Distribution Branch will be B.C.’s wholesale distributor of non-medical cannabis. The Liquor and Cannabis Regulation Branch will be responsible for licensing non-medical cannabis private stores and monitoring the non-medical cannabis retail sector.For more information, see LCRB non-medical cannabis retail licence.

Driving restrictions:

B.C. has amended the Motor Vehicle Act to give police more tools to remove drug-impaired drivers from the road and deter drug-affected driving, including:

• A new 90-day Administrative Driving Prohibition (ADP) for any driver whom police reasonably believe operated a motor vehicle while affected by a drug or by a combination of a drug and alcohol, based on analysis of a bodily substance or an evaluation by a specially trained police drug recognition expert (DRE); and,

• New drivers in the Graduated Licensing Program (GDL) will be subject to a zero-tolerance restriction for the presence of THC (the psychoactive ingredient in cannabis).

If a peace officer suspects a driver is affected by drugs, they may conduct a standard field sobriety test. A failing performance of this test is grounds to impose sanctions (such as 24-hour prohibition). At the officer’s discretion, they may be subject to a drug recognition evaluation by a specialized drug recognition expert — this evaluation is much more detailed and is used by police as evidence in order to pursue drug-impaired driving charges under the Criminal Code of Canada.

Cannabis sales in Manitoba will be exclusively private, both in online sales and brick-and-mortar locations. The provincial government will be the sole wholesaler and will be responsible for overseeing distribution. Retailers will determine sale price themselves.

Driving restrictions: Manitoba has made significant changes to The Highway Traffic Act and related legislation to ensure police agencies are better equipped to deal with drug-impaired drivers.

The legislation:

• allows for a 24-hour suspension of a driver’s licence if a police officer believes the driver is under the influence of a drug and unable to safely operate a motor vehicle;

• requires the Registrar of Motor Vehicles to determine if graduated licensed drivers, who receive the 24-hour suspension, should face further consequences;

• prohibits the consumption of cannabis in motorized vehicles on a highway;

• requires marijuana to be stored in a secure compartment — for example, in the vehicle’s trunk — so that it is inaccessible to people in the vehicle, similar to the rules around open liquor;

• establishes similar restrictions and prohibitions related to marijuana use for individuals driving off-road vehicles.

Those who drive impaired can be charged and face penalties under the Criminal Code, ranging from a fine of at least $1,000 for a first offence, mandatory jail sentences for subsequent offences and a court-ordered driving prohibition ranging from at least one year to a maximum of three years for a first offence. Impaired drivers also receive sanctions, such as driver’s licence suspensions, vehicle impoundment and ignition interlock use requirements under The Highway Traffic Act.While police already have officers trained in Standard Field Sobriety Tests and Drug Recognition Evaluation, they will also now be authorized under the Criminal Code to use oral fluid drug screening devices and to demand that drivers who fail those tests provide a blood sample to confirm whether they are over the legal limits.

The only legal place to purchase cannabis will be through Cannabis NB, a subsidiary of the New Brunswick Liquor Corporation. All dispensaries are currently illegal in New Brunswick and will remain illegal when cannabis becomes legal. Buying cannabis online from any website other than Cannabis NB will also be illegal.

Driving restrictions: Cannabis use of any kind in or on a vehicle, moving or not, on a highway or on a managed trail will be prohibited. This also applies to motorcycles, farm tractors, off-road vehicles and snowmobiles.

Cannabis will be sold through private retailers, but the provincial liquor corporation, Newfoundland Labrador Liquor Corporation, will be responsible for distribution. Online sales will be handled exclusively by a provincial store, though the province hasn’t ruled out eventually allowing some private retailers to sell online. The provincial store is also in charge of setting prices for retailers.

Driving restrictions: Upon legalization of cannabis by the federal government, the following changes will take effect:

• Zero tolerance for drugs for novice drivers, drivers under age 22 and commercial drivers;

• Seven-day vehicle impoundment for the presence of drugs or a combination of drugs and alcohol for novice drivers, drivers under age 22 and commercial drivers;

Cannabis in the Northwest Territories will be administered by the NWT Liquor Commission, with the organization taking control of imports and sales. Residents can buy products through liquor stores or via a mail-order service that will be established by the Liquor Commission.

Home grow restrictions: Permitted as per Cannabis Act.

Driving restrictions: In the NWT, the RCMP enforce impaired driving laws. Driving restrictions and penalties are based on federal laws for cannabis-impaired driving (see above), including zero tolerance for drugs for novice drivers, suspensions, fines and loss of licence.

In addition to facing potential charges under the Criminal Code, drivers in the NWT could have their driver’s licence suspended if they:

• fail a Standardized Field Sobriety Test (also known as physical co-ordination tests);

• fail an evaluation by a Drug Recognition Expert; or

• refuse to do the test or evaluation without a reasonable excuse;

• certain types of drivers can have their driver’s licence suspended if they are found to be driving with any amount of alcohol or prohibited drugs in their system, specifically: if they are younger than 22 years of age; if they have a learner’s driver’s licence or a probationary driver’s licence; and if they drive certain types of commercial vehicles;

• cannabis in a vehicle must be unopened or be stored in a place that is out of reach of the driver and any passengers;

• the Registrar of Motor Vehicles has been given the authority to release some motor vehicle and driving‐related records to law enforcement agencies when required for law enforcement purposes.

and vaping are prohibited in restricted places as outlined in the Smoke-free Places Act.

Distributor: Nova Scotia Liquor Corporation (NSLC)

The Nova Scotia Liquor Corporation will be the only authorized retailer of cannabis in the province. Cannabis can be purchased at designated NSLC stores or online. For more information, visit the Nova Scotia Liquor Corporation.

While edibles can be produced at home for personal use, it will remain illegal under federal law to sell edibles, including at restaurants and markets.

Home grow restrictions: Permitted as per the Cannabis Act, but they can be restricted by residential landlord (even existing leases).

Driving restrictions: Driving restrictions and penalties for cannabis are on par with alcohol-impaired driving, including zero tolerance for drugs for novice drivers, suspensions, fines and loss of licence.

• Drivers cannot be impaired while operating a vehicle. This includes medical cannabis users and applies to all motorized vehicles including boats. Cannabis in any form cannot be used by passengers or drivers. Fines for consumption in a vehicle can be up to $2,000;

• Drivers suspected of impaired driving may be required to undergo a Standardized Field Sobriety Test (SFST). This involves co-ordination tests in combination with previously observed driving evidence. If a driver fails the SFST, a Drug Recognition Expert (DRE officer) may conduct additional tests at a secondary location to determine if a driver is impaired;

• After completing an SFST, if an officer believes they have grounds to lay a charge of impaired driving, the driver’s licence is immediately suspended for 24 hours. Drivers must provide a bodily fluid sample and a charge for impaired driving is pending, subject to the results. If the results confirm impairment under the Criminal Code, a charge is laid and the driver’s licence is suspended for 90 days.

If convicted of impaired driving, the following penalties will apply:

• first offence: fine of not less than $1,000 and a one-year licence suspension;

• second offence (within a 10-year period): imprisonment of up to 30 days and a three-year licence suspension;

• third offence (within 10-year period): imprisonment of up to 120 days and a five-year licence suspension;

Additional penalties may apply if there is bodily harm or death or if a driver has frequent driving suspensions. If convicted of driving impaired with a child in the vehicle, a person’s licence will be revoked for an additional 12 months. In all cases of suspension, drivers must pay a licence reinstatement fee.

After completing an SFST, if an officer has reason to suspect someone is driving under the influence of cannabis, but they do not have the grounds to lay a criminal charge, they have the authority to immediately suspend the driver’s licence as follows:

• first incident: seven days;

• second incident: 15 days;

• third incident: 30 days.

This is a similar approach to drivers who have alcohol in their system but are below the criminal legal limit. Drivers must also pay a licence reinstatement fee.

As with alcohol, there will be zero tolerance for drivers in the graduated licence program.

Permitted where tobacco smoking is allowed but not in vehicles, hospitals, playgrounds, parks or school grounds.

Distributor: Nunavut Liquor and Cannabis Commission (NULC)

The Nunavut Liquor and Cannabis Commission will sell cannabis remotely (online and by phone), in physical stores and through an agent. The Nunavut government will licence establishments that sell cannabis, including stores and lounges, based on community consultations. The act allows for regulation of cannabis cultivation, but it does not expressly forbid it. The legislation establishes an inspection, search and seizure regime.

Home grow restrictions: Permitted as per Cannabis Act, but may be restricted by regulation.

Driving restrictions: Cannabis use is prohibited in vehicles. It has the same restrictions as with alcohol.

Starting Oct. 17, Ontarians will be able to buy online through the Ontario Cannabis Store, but bricks-and-mortar private stores won’t be opening until after a retail framework is set up by April 1. Originally, the province had a plan where physical and online cannabis stores would be operated by Ontario’s official cannabis retailer, the Ontario Cannabis Retail Corporation. With the introduction of Bill 36 on Sept. 27, the physical cannabis stores in Ontario will be operated by private licensed retailers, but the OCRC will continue to be the sole authorised online retailer in the province.

Home grow restrictions: Permitted as per Cannabis Act.

Driving restrictions:

Drug-impaired driving will see stiffer penalties than currently exist, and there will be a zero-tolerance policy for young, novice or commercial drivers.

If a driver is legally authorized to use cannabis for medical purposes, they will not be subject to Ontario’s zero-tolerance drug requirements for young, novice and commercial drivers. However, they can still face penalties and criminal charges if a police officer determines that their ability to drive has been impaired.

If a police officer finds that someone is impaired by any drug, including cannabis, they will face serious penalties, including:

• an immediate licence suspension;

• financial penalties;

• possible vehicle impoundment;

• possible criminal record;

• possible jail time.

Police officers will be authorized to use federally approved oral fluid screening devices at the roadside.

Drivers will not be allowed to have any cannabis in their system (as detected by a federally approved oral fluid screening device) if they are driving a motor vehicle and:

Recreational consumption restrictions: Consumption permitted in private dwelling or vacant land with consent of the occupant(s), with potential for designated spaces.

Distributor: PEI Cannabis Management Corporation

Home-grow restrictions: Permitted as per Cannabis Act, but must be inaccessible to minors; landlord consent required.

Driving restrictions: People can’t drive any vehicle while consuming cannabis. When driving, cannabis must be out of reach to the driver. Cannabis can’t be used by passengers either. Police officers are being trained to conduct roadside assessments and more police officers are being trained as drug recognition experts. Oral screening devices that detect the presence of cannabis will be another tool for enforcing the rules on impaired driving. Adults will not be able to consume cannabis in a boat or motor vehicle. However, exceptions do apply for boats and motor vehicles that qualify as private dwellings when docked.

The laws for transporting cannabis are similar to those in place for transporting liquor.

Recreational consumption restrictions: The newly elected Coalition Avenir Québec government has promised to bring in a province wide ban on cannabis use in public places.

Distributor: Société des alcools du Québec

Home grow restrictions: Home growing of cannabis is forbidden under the new CAQ government.

Driving restrictions: There will be a zero-tolerance policy for drug-impaired drivers.

• zero drug tolerance prohibits any person from driving a road vehicle or having care or control of it if there is a detectable presence of cannabis or another drug in the person’s saliva. This measure will come into effect when effective equipment becomes available to detect the presence of cannabis in saliva. The equipment must be able to be used on the roadside by peace officers and must have been approved by both the competent federal authorities and the Minister of Public Security of Québec;

• Until the equipment becomes available to detect the recent consumption of cannabis, peace officers will continue to use the evaluations that enable them to detect that a person is impaired by cannabis or other drug;

• An exception to this measure could be provided by a government regulation for the benefit of consumers of medical cannabis, subject to certain conditions. The exception would not, in any case, permit the persons concerned to drive a road vehicle when they are impaired;

• A peace officer may immediately suspend, for 90 days, the licence of any person driving a road vehicle if, according to the evaluation conducted by an evaluating officer, the person is impaired by cannabis or any other drug or by a combination of cannabis or any other drug and alcohol;

• The offender’s vehicle could be seized if, in the past, the offender was found guilty of an offence in connection with alcohol or a drug;

• A peace officer may also immediately suspend, for 90 days, the licence of any person who fails or refuses to comply with an order given to the person by a peace officer to submit to physical co-ordination tests or to provide samples of saliva that the peace officer deems necessary to carry out the appropriate analysis with the help of the approved drug detection equipment;

• Severe penalties will be imposed on drivers who must drive a vehicle equipped with an alcohol ignition interlock device if they fail to comply with the zero-drug rule;

• In cases of driving with alcohol, cannabis or drugs present in the body, the holder of a licence subject to the mandatory use of an alcohol ignition interlock device will be liable to a fine of $1,500 to $3,000, in addition to having their licence immediately suspended for 90 days and their vehicle seized for 30 days;

• Consumption of cannabis or other types of drugs in a road vehicle, an off-highway vehicle or on a bicycle is prohibited.

Recreational consumption restrictions: Consumption in public is prohibited. Consumption of lighted cannabis in private places may be limited.

Distributor: Saskatchewan Liquor and Gaming Authority

Private retailers will be in charge of selling cannabis in Saskatchewan. The Saskatchewan Liquor and Gaming Authority says it will issue 51 permits across the province, according to the Globe and Mail on Oct. 9.

Home grow restrictions: Permitted as per Cannabis Act. Landlords may set and enforce “reasonable” cannabis rules.

Driving restrictions: It’s illegal and will continue to be illegal to drive while impaired whether by drugs or alcohol even once marijuana becomes legal.

New driver immediate roadside suspension penalties are:

• First offence within 10 years: 60 days;

• Second offence within 10 years: 120 days;

• Third or subsequent offences within 10 years: 18 months;

• If charged with an impaired driving offence under the Criminal Code, the suspension is indefinite until the court decision is made.

The Yukon will have at least one retail location owned and operated by the government. It will also establish an online sales option. The Yukon will also let licensed private businesses enter the marketplace and sell to residents.

Home-grow restrictions: Permitted as per Cannabis Act.

Driving restrictions: Driving while impaired by any drug, including cannabis, is illegal.Drug-impaired driving offences are currently, and will continue to be, addressed through the Criminal Code of Canada (see above) as well as the Yukon Motor Vehicles Act and Regulations.

Sources: Government of Canada and provincial websites and territorial websites

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